On September 8, 2017, Justices Tshepo Motswagole, Lot Moroka, Gaolapelwe Ketlogetswe and Godfrey Nthomiwa filed a notice of motion seeking an order in the following terms: that a rule nisi be issued calling upon the respondents to show cause why, if any, the following orders should not be made final-that the matter was urgent and that the JSC be interdicted from continuing with its investigation against them in respect of a petition dated August 17, 2015 pending finalisation of review proceedings to be instituted by the applicants among other reliefs sought.
The background of the proceedings came be traced from the annual Judicial Conference that was held in Mahalapye in 2015.
At the same conference a resolution was taken that resources be made available for continuous training of judicial officers.
“According to the deponent (Ketlogetswe on behalf of other applicants) in the applicants’ founding affidavit, this adoption did not please the CJ. The CJ’s displeasure was revealed to the deponent the following morning at breakfast. It is averred that the CJ said some judges advocating for the resolution were improperly receiving a housing allowance whilst occupying institutional houses.
“It is averred that the CJ stated that he would expose such judges to the print media so as to destroy their careers since he was aware that some of the judges haboured ambitions of becoming the CJ,” Justice Phadi Solomon said on her ruling on Wednesday.
The deponent avers that he unsuccessfully tried to dissuade the CJ from carrying out his threats but after some days he discovered that the CJ had reported the affected judges to the police.
“…Thereafter other judges narrated their individual complaints against the CJ and resolved during a meeting to come up with a written petition demanding audience with the JSC about the matter. The JSC response was that it would be inappropriate to meet the authors of the petition whilst the police investigations into improper receipt of housing allowance were still pending,” Solomon said.
The deponent on behalf of other three judges averred that there was complete silence from the JSC until May 30, 2017 when the JSC wrote annexure GG3 to the deponent and other applicants, Solomon added.
“The gist of the letters is that the applicants were requested to state their position with regard to the allegations made in the petition in light of the fact that eight of the 12 judges who initially authored the petition have since apologised to the CJ. The applicants responded by saying that because of passage of time and in the interest of allowing the matter to rest, the JSC should consider the matter closed,” Solomon said.
Solomon also said the applicants averred that it was clear from annexure GG6 that the JSC has made a decision to open an investigation against the applicants in relation to the petition and determined that there is prima facie case of misbehaviour for purposes of Section 97 of the Constitution and that the investigation was likely going to lead to the applicants removal from office as judges.
On the other hand, the JSC denied that it had embarked on an investigation and it averred that that prerogative to investigate falls on the President in terms of Section 97 (3) of the Constitution and not on the JSC adding therefore that the application against the JSC was misplaced and premature… and that there was never a decision to open an investigation since that decision may be made by the President is he sees it fit.
scrutinized the letter dated May 12, 2017 to see if any reference to an investigation is made but did not find such. My understanding of the letter is that it was invitation by the JSC to the applicants to state their position regarding the allegations made in the petition against the CJ since eight judges have apologised to the CJ,” Solomon said.
It would be pure speculation, Solomon said, to try to predict what the next step would be without the applicants informing the JSC of their position regarding the petition to the JSC.
“The applicants’ position is a matter known by themselves only. One can surmise from the tone of these proceedings that an apology is not likely to be option for them…. Notwithstanding the fact that there is nothing in annexure GG3 that can be construed be initiation of an investigation, a proper reading of Section 97 (3) of the Constitution clearly states that a tribunal appointed by the President can investigate judges for their conduct. Nothing in the Constitution gives the JSC such power,” Solomon said.
“… A careful scrutiny of August 2017 letter… shows that the letter has not been referred to the President. Had this been the case, then the natural principle that no person should be judged without a fair hearing in which each party is given the opportunity to respond to the evidence against them would be infringed upon because the referral would have been made without hearing the applicants… In my view, a decision by the JSC to invite input from the applicants was a compliance with the principle of hearing both sides and not an infringement which would be subject to review,” Solomon said. “In response to the applicants’ submission regarding the principle that no one should be judge in his own case, I refer to Section 103 (1) (a) of the Constitution, which makes the CJ the chairman of the JSC. His presence at the meetings of the JSC is therefore a constitutional requirement. However, Section 103 (5) provides that the JSC may regulate its own procedure and that subject to that procedure, the JSC can act in the absence of any member without its decision being invalidated.”
She added: “Whether or not the CJ actually chaired the meetings mentioned is a matter of speculation since no minutes of the meetings are available to confirm who actually attended the meetings and who chaired them…. I have noted that the JSC wrote to the applicants and authors of the petition on August 19, 2015 informing them that it would not be appropriate to meet with them whilst police investigations were pending. None of the applicants responded to the letter which gives rise to an inference that they accepted the explanation….”
It is worth noting, Solomon noted, that both parties agree it is illegal if there is no justification for the delay.
“In this matter the applicants have not been subjected to disciplinary action by the JSC, they only habour apprehension that they will be disciplined but apprehension of disciplinary action is not the same as disciplinary action so the delay in communicating by the JSC cannot be interpreted as illegal. In any case as mentioned earlier, the applicants did not complain when they were informed of the reasons of the delay in the letters of May and August 2017,” Solomon said. Solomon said that she has observed that the applicants are so apprehensive of possible harm in the form of losing their jobs as judges that they want to stop the JSC from performing its administrative duties, which duties the JSC is entitled by law to perform.